People v. MacAfee
| Court | New York Supreme Court Appellate Division |
| Writing for the Court | Before GREENBLOTT; GREENBLOTT |
| Citation | 76 A.D.2d 157,431 N.Y.S.2d 149 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Roy A. MacAFEE, Appellant. |
| Decision Date | 24 July 1980 |
Page 149
v.
Roy A. MacAFEE, Appellant.
Page 150
James M. Kerrigan, Ithaca, for appellant.Joseph Joch, Jr., Dist. Atty., Ithaca, for respondent.
Before GREENBLOTT, J. P., and KANE, STALEY, MIKOLL and CASEY, JJ.
GREENBLOTT, Justice Presiding.
Defendant, who was convicted of two counts of rape in the first degree (Penal Law, § 130.35, subd. 3) and one count of endangering the welfare of a child (Penal Law, § 260.10, subd. 1), primarily contends that the two rape counts of the indictment were defective and should have been dismissed. We agree.
Count one of the indictment, which alleged that at unknown times between May, 1976 through December, 1977, defendant engaged in sexual intercourse with Stephanie Lynn, a female who was less than 11 years old, was patently defective. Section 200.50 (subds. 6, 7) of the CPL provides that an indictment "must" contain "(a) statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time" and "(a) plain and concise factual statement in each count which * * * asserts facts supporting every element of the offense charged and
Page 151
the defendant's * * * commission thereof with sufficient precision to clearly apprise the defendant * * * of the conduct which is the subject of the accusation." Section 210.25 (subd. 1) of the CPL provides that a count of an indictment is defective when "(i)t does not substantially conform to the requirements stated in article two hundred (§ 200.10 et seq.)", and, therefore, under section 210.20 (subd. 1, par. (a)), count one should have been dismissed.Defendant, however, moved in the alternative for dismissal of count one or for a bill of particulars specifying the date on which the alleged offense took place. Although "(a) bill of particulars cannot, of course, serve to amend an indictment, nor can it ever cure a defective pleading" (Denzer, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 200.90, p. 292) 1, the trial court accepted the People's "answering affidavit" as a bill of particulars in response to his motion. 2 The People therein set forth four specific occasions on which the alleged offenses took place, with a fifth catchall allegation that between May 19, 1976 and November, 1977, defendant raped Stephanie "at least fifteen other times". In so doing, however, the fundamental rule that "(e)ach count of an indictment may charge one offense only" (CPL 200.30, subd. 1) was clearly violated (People v. Rosado, 64 A.D.2d 172, 177, 409 N.Y.S.2d 216; People v. Brannon, 58 A.D.2d 34, 44, ...
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Grady v. Artuz, No. 94 Civ. 7362 (JGK).
...The first case the parties identify dealing directly with the issue of duplicity of an indictment for a sex offense is People v. MacAfee, 76 A.D.2d 157, 431 N.Y.S.2d 149 (3d Dep't 1980). The defendant appealed his conviction on two counts of rape and one count of child endangerment, asserti......
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People v. Davis
...a unanimous verdict was not reached ( People v. Keindl, supra, 68 N.Y.2d at 418, 509 N.Y.S.2d 790, 502 N.E.2d 577; People v. MacAfee, 76 A.D.2d 157, 159-160, 431 N.Y.S.2d 149). However, dismissal is not automatic if the number of offenses charged by a particular count is uncertain because t......
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Covington v. State, No. A-203
...State v. Pace, 187 Or. 498, 212 P.2d 755 (Or.1949). Cf. People v. Pries, 81 A.D.2d 1039, 440 N.Y.S.2d 116 (1981); People v. MacAfee, 76 A.D.2d 157, 431 N.Y.S.2d 149 (1980) (requiring specific acts and dates to be spelled out in the 4 Alaska Rule of Evidence 404(b) provides: Evidence of othe......
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People v. Keindl
...acts which separately and individually make out distinct crimes must be charged in separate and distinct counts (People v. MacAfee, 76 A.D.2d 157, 431 N.Y.S.2d 149; People v. Brannon, 58 A.D.2d 34, 394 N.Y.S.2d 974), and where one count alleges the commission of a particular offense occurri......
-
Grady v. Artuz, No. 94 Civ. 7362 (JGK).
...The first case the parties identify dealing directly with the issue of duplicity of an indictment for a sex offense is People v. MacAfee, 76 A.D.2d 157, 431 N.Y.S.2d 149 (3d Dep't 1980). The defendant appealed his conviction on two counts of rape and one count of child endangerment, asserti......
-
People v. Davis
...a unanimous verdict was not reached ( People v. Keindl, supra, 68 N.Y.2d at 418, 509 N.Y.S.2d 790, 502 N.E.2d 577; People v. MacAfee, 76 A.D.2d 157, 159-160, 431 N.Y.S.2d 149). However, dismissal is not automatic if the number of offenses charged by a particular count is uncertain because t......
-
Covington v. State, No. A-203
...State v. Pace, 187 Or. 498, 212 P.2d 755 (Or.1949). Cf. People v. Pries, 81 A.D.2d 1039, 440 N.Y.S.2d 116 (1981); People v. MacAfee, 76 A.D.2d 157, 431 N.Y.S.2d 149 (1980) (requiring specific acts and dates to be spelled out in the 4 Alaska Rule of Evidence 404(b) provides: Evidence of othe......
-
People v. Keindl
...acts which separately and individually make out distinct crimes must be charged in separate and distinct counts (People v. MacAfee, 76 A.D.2d 157, 431 N.Y.S.2d 149; People v. Brannon, 58 A.D.2d 34, 394 N.Y.S.2d 974), and where one count alleges the commission of a particular offense occurri......